Legalized Highway Robbery – How the Government can Seize the Property of Innocent Americans

Last week, The Washington Post published “Stop and Seize,” a three-part series chronicling the government’s seizure of hundreds of millions of dollars in cash from Americans not charged with a crime.

Asset forfeiture laws are designed to protect the public and deter crime by taking property gained through criminal activity. However, criminals are not the only ones who have their property confiscated. According to The Washington Post, since 2001, police have seized $2.5 billion in cash from people who were never charged with a crime. Law enforcement must retain their ability to prevent criminals from bearing the fruits of criminal activity, but individuals not charged with a crime should not be at risk to have their property confiscated.

Under civil forfeiture laws, the government can seize an individual’s assets simply if the property is suspected to be involved in criminal behavior. This differs from criminal forfeiture laws in that, under civil forfeiture, the owner does not need to be charged with a crime to have the property taken.

For example, The Washington Post tells the story of Mandrel Stuart, the owner of a small barbecue restaurant in Virginia. In 2012, law enforcement stopped Stuart for a minor traffic infraction. During the stop, $17,550 that Stuart earned from his restaurant and intended to use for supplies and equipment was seized. Stuart was never charged with a crime and there was no evidence of criminal wrongdoing. He eventually got his money back but, because he lacked the cash to pay for overhead, lost his business.

Only one-sixth of the seizures examined by The Washington Post were legally challenged, often because the legal costs exceed the amount seized.  Unlike with criminal cases, legal counsel is not provided to those who cannot afford it but want to challenge the government and reclaim their property.

Examples like Stuart abound. In a recently released study, the Institute for Justice concluded that civil forfeiture laws lead to systematic abuse. Because asset forfeiture can provide a significant source of revenue for police departments in most states, the government is incentivized to focus on increasing forfeiture revenue rather than on preventing crime.

Requiring law enforcement agencies authorized to seize property to report data on seizures and forfeitures such as date of seizure, type of property seized, type of alleged crime associated with seizure, outcome of related criminal action and type of forfeiture procedure would bring transparency to the process. Alternatively, states can get rid of civil asset forfeiture entirely, only allowing for the seizure of property when an individual is convicted of violating a law.

Reforms must ensure that law enforcement has the ability to prevent criminals from bearing the fruits of their criminal activities while protecting innocent Americans from having their property taken before being charged with a crime.